Citation Nr: 21077089 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-36 461 DATE: December 28, 2021 REMANDED Entitlement to service connection for a chronic headache disability, to include secondary to service-connected adjustment disorder with mixed anxiety and depressed mood, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1976 to March 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of the August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the matter was remanded for additional development. In June 2021, the matter was remanded for additional development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for a chronic headache disability, to include secondary to service-connected adjustment disorder with mixed anxiety and depressed mood is remanded. The Veteran contends her chronic headache disability is related to an injury that occurred during her active service. In the alternative, the Veteran contends that her headache disability is secondary to her service-connected adjustment disorder with mixed anxiety and depressed mood disability. In June 2021, the Board remanded this appeal to schedule the Veteran for an examination and to obtain adequate medical opinions. In October 2021, VA secured medical opinions to determine if there was a nexus between the Veteran's headaches and active service. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination or medical opinion for the Veteran's headache disability. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2021 VA examiner indicated that an examination was not necessary because a review of the medical evidence would be sufficient, and an examination would likely provide no additional relevant evidence. The examiner indicated that the Veteran reported that she has constant head pain, and sensitivity to light and sound, that last one to two days. The Veteran reported that her headache is on top of her head and behind the eyes. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner stated that, "although Veteran sustained a fall while in service in December 1977 which led to temple/head injury the Veteran's treatment records are void of a chronic complaint of headaches." The Board finds this medical opinion to be inadequate because it relies solely upon the absence of documentary medical evidence and does not address the Veteran's contention that while she has not received treatment from a doctor, she has had to self-treat her headache condition. The Board finds that because the Veteran has indicated that she self-treats her headaches, that it may have been beneficial for the examiner to interview the Veteran instead of solely relying upon a limited number of medical records in making a determination. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood disability. As to the rationale, the examiner explained that while "the medical literature indicates there is an increased association between psychiatric disorders such as adjustment disorder with mixed anxiety and depressed mood however there is no evidence of direct causation." The Board assumes the examiner meant that there is an association between psychiatric disorders and headaches, and then the examiner found that there is no evidence of direct causation. The examiner provided an analysis of headaches and psychiatric conditions in the notes section but concluded that an evaluation would be needed to be completed by an experienced psychiatrist or psychologist. In addition, the VA examiner did not provide an opinion as to whether the Veteran's headaches were aggravated by her service-connected disability. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. The Board acknowledges that the examiner has indicated that the evaluation would need to be performed by an experienced psychiatrist or psychologist. The examiner opined that the Veteran's headaches, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The October 2021 VA examiner noted that the Veteran marked "yes" to frequent or severe headaches on her initial enlistment documents, report of medical history, and the examiner at enlistment noted "occasional headache." As to the rationale, the October 2021 VA examiner explained that it is evident in the records that prior to service the Veteran had a history of headaches and poor vision. However, the headaches appear to be related to both vision issues and sinus infections. The examiner then stated that it is her opinion that the Veteran's current headaches are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. While the examiner marked the box for the correct standard of indicating that the Veteran's headaches clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness, the examiner's rationale applied the incorrect legal standard of "as likely as not." See Wagner v. Principi, 370 F. 3d. 1089 (Fed. Cir. 2004). In summary, a remand is required to obtain adequate VA medical opinions prior to adjudication. The matter is REMANDED for the following action: 1. The RO should attempt to obtain any pre-service treatment records relevant to the Veteran's headache disability. 2. Schedule the Veteran for an examination by a psychiatrist or psychologist. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Whether the Veteran's headache condition is at least as likely as not (50 percent or greater probability) proximately due to her service-connected adjustment disorder with mixed anxiety and depressed mood disability. (b.) Whether the Veteran's headache condition is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by her service-connected adjustment disorder with mixed anxiety and depressed mood disability. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 3. Obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand. No (in person-examination) of the Veteran is necessary unless the examiner deems otherwise. However, the Veteran should be interviewed to determine the intensity and the frequency she has self-treated her headache condition since service and to determine what causes the headaches. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Whether the Veteran's headache condition is at least as likely as not (50 percent or greater probability) related to her military service. (b.) Whether the Veteran's headache disability clearly and unmistakably pre-existed service and if so, whether the pre-existing disorder clearly and unmistakably was NOT aggravated beyond normal progression by active service. Any such evidence should be identified with specificity. The term "clear and unmistakable means "obvious or manifest," "cannot be misinterpreted and misunderstood," or "undebatable." See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). (Continued on the next page) 4. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.